Mar 13, 2017

Ever Heard Of HITECH?

If you work at a hearing office, you probably already know that Social Security disability claim files have been getting longer over the last few years. Let me explain why this is happening and why it is going to get worse over the next year or two. Also, I'll explain why this has major implications for the Social Security Administration.

The most important reason files have been getting longer is electronic medical records. It has become easier for medical providers to create and store medical records. When they were storing medical records in physical files, medical providers had incentive to keep the records concise. How do you store a 2,000 page physical file? How does a physician make use of such a huge physical file? Once things went electronic, medical files started ballooning. Medical records systems used in many physician offices and at some large providers, including the VA, regurgitate almost the entire medical history as a new medical record every time a patient sees a physician. With VA records in particular, the new material gets lost in a mass of repetition.

Because of electronic medical records, Social Security hearing files are exploding. Files of 1,000 pages or more used to be rare. Now, they're common. Files of 2,000 pages or more were almost never seen in years past. Now, I see them on a regular basis.

This is going to get a lot worse because of a statute that I'll bet that almost no one at Social Security has heard of -- the HITECH Act. HITECH stands for Health Information Technology for Economic and Clinical Health Act. The Act was designed to encourage physicians to convert to electronic medical records. HITECH happens to address, in passing, a couple of problems that attorneys representing Social Security claimants have had -- slow processing of requests for medical records and excessive charges for providing those records. HITECH puts a time limit on responding to requests for medical records and prohibits providers from charging more than what it actually costs them to provide medical records as long as the records are provided in an electronic format. Attorneys are rapidly switching over to making their requests for medical records under the HITECH Act. It's cutting our costs significantly and making the turnaround time on medical records requests shorter.

Before HITECH, attorneys were careful to specify exactly what they wanted because they would be paying for each page of medical records. Now, that's no longer important. One thousand pages of medical records are no more expensive to obtain than ten. Even when an attorney makes a narrow request for medical records, providers often send far more than was requested. If you don't have to print out the records and you're not able to charge for each page, why bother sorting out exactly what the attorney requested? Just send the whole thing. And once an attorney receives medical records, even if they are records the attorney didn't ask for he or she has no alternative but to send everything to Social Security. EVERYTHING. That's what agency regulations demands. If you don't do that, you get in trouble. I recently submitted more than 850 pages of medical records recently covering about ten months of outpatient treatment for one of my clients and the medical care she was receiving wasn't all that intensive.

So why is this important for the agency? It takes a lot longer to review a 2,000 page file than a 300 page file even if most of the 2,000 page file is of zero consequence for the disability claim. Administrative Law Judges cannot be expected to hear 40-50 cases a month and know what they're doing if they have to deal with such huge files. There's no technical fix for this. Exhorting employees to work harder isn't going to help. Social Security is running headlong into a brick wall on this one. And those foolish regulations demanding that attorneys submit EVERYTHING are just making things worse. I told you that you were trying to go after a fly with a sledgehammer but you wouldn't listen.

16 comments:

Anonymous
said...

With you until you said ALJ has to review every page. No they don't.

As you note, much of what they have is filler. A three days hospital stay will now include forty pages of nurse notes basically recording every temperature/blood pressure etc. Doctors may need to see that, but ALJ, not so much.

ALJ can look through for discharge summary for every Hospitalization. Two pages instead of 50. ALJ can read narrative reports from CE and TP (even just the assessment. ALJ is not doctor. And reading every page is not necessary to get to the main issue of disability. The main issue is whether or not this person can work and that is determined, in nearly all cases, by whether or not the ALJ believes them. The medical records form a base for the ALJ to see if there is really a medical problem but once that is passed, then credibility is all that matters.

And that doesn't require reading records like EKG's that the ALJ does not understand.

Well, there is the problem of not reading every page and finding out that the claimant reported working, not taking meds, feeling better, and taking care of their 6 grandchildren. Or that their EF was 20 for three days and has been 50-55 ever since. Sure, you don't want us to read every page, but we need to. Further, I do know how to interpret EKGs.

Charles, SSA has heard about HITECH and commented on them when they were a draft proposal. Even evaluated them for impact on the records SSA maintains. What you are pointing out is rather an unintended consequence of two separate things - HITECH making EMR more prevalent and SSA regs that require full files be sent. A butterfly moves it's wings and consequences occur elsewhere kind of thing.

So if you don't have to send everything who decides what to send? You? the guy getting paid only if you win? You're the guy who should be deciding what is relevant? Look I know you think all your clients should win but there are so many mills out there that take anyone who walks in the door with a denial. Its a volume business and we have some outlier pay judges, they have to to stay in business. So many repped claims are a joke.

Records didn't get bigger for one reason. Records got big because med mal cases got out of control and providers wanted detailed evidence to defend themselves. Records got big because Medicaid expanded and unemployed poor people could just keep going to the ER without consequence. Records got big because providers realized they could charge 25 cents a page. Records got big because third party records management companies opened and developed a profit incentive.

I understand that it's submit everything relevant to the disability, even if adverse, not everything about the person. And ALJs with whom I deal have even said they didn't need anymore records that repeat what they already have from medical sources already in the record. I know that the ALJ doesn't need to read 12 pages of who entered this information into the file, etc. I am familiar with VA records, and I understand the ALJ doesn't want all 2000 pages covering 3 visits, and I also understand to submit the EKG's. I don't know if ODAR has the option of discarding superfluous records, but I do. I do keep useless stuff in case anyone wants to make sure I'm not storing bombshells about this claimant's medical history and will inform ODAR of what I have. They've never asked for it.However, medical records, even electronic ones, are written. I am looking forward to when writing will be taught to those, doctors and others, who write records. Electronics isn't the problem, it's the writing.

12:12 is off base for the most part except for the part about third party record providers. I never understood the benefit of this, and it is more expensive and time consuming for reps to get the records. Then they take a month to tell you that you forgot to check something on their form. However, I'm not sure electronic records are responsible for their advent. Healthport has been around awhile.Disability mills will take denials but drop them before the hearing if they don't think they can win. No one wants to pay for medical records for a weak case.

meh, I suppose. I'm not the judge, my job is to write persuasive denials that stand up to appellate review. It's basically the other side. Little thought goes into FF because there's no dispute. What's the theory? It's just one side? just you vs the evidence? You have made a claim, the Agency has denied your claim. You appeal going against the Agency. In the hearing, you're disputing the Agency going against the agency. Its basically two sides just only one is in the room until the district court level. I'd love to cross examine some claimants.

Ah, I misunderstood. No, I have no issue with a decision writer being on the other side while writing a denial. That makes sense.

In regard to my perspective of the administrative hearing and decision, I would say the strongest cases are those in which the issues being disputed were not even addressed by the state agency. Listings ignored, medical records not addressed, vocational findings unsupported by evidence, medical-vocational guidelines not applied, etc. Also, post-reconsideration medical evidence can be relevant, although more often than not the most significant evidence is obtained and submitted prior to a claim being denied by the state agency.

Additionally, if caselaw is contrary to agency policy in a meaningful way...which is happening more and more given the general policy of non-acquiescence that has been present in the Ninth Circuit since the 90s, notifying ALJ's of this danger seems (in my experience) to be persuasive.

its my understanding an ALJ can't really consider or cite adverse caselaw. I've been told to remove case law cites (I copied from rep briefs) in drafts and to only cite regs and SSRs I've been told caselaw doesn't apply until an SSR is issued, the agency could still be appealing they say.

You are correct as a matter of agency policy, and correct that caselaw doesn't apply until an SSR is issued (or an AR) to ALJs. But caselaw is binding upon the court's consideration of ALJ decisions.

It just seems like an ALJ considering and addressing caselaw would result in stronger decisions, which in turn would result in fewer appeals, which I would hope is what everyone wants.

In regard to the agency still appealing caselaw contrary to agency policy, they might be. I don't scour supreme court cert requests, and I am actually unsure if I could have access to the actual briefing involved. But, if you mean the agency might be appealing caselaw to the circuit courts themselves, I rarely see this. Generally the argument is that any error in following caselaw was harmless error.

This is old news. HITECH came along back in 2009 with the American Recovery and Reinvestment Act (the Stimulus Package). SSA got some funding for Health IT back than and has been interoperating with various healthcare organizations and Health Information Exchanges since that time. Still pretty small volume but growing. Seems that they are seeing benefits from getting electronic health information. The interesting part is that most healthcare providers in the nation are using electronic health records according to HHS, wonder why SSA is still not doing more here.